REPUBLIC vs. DALI II; EX PARTE GOGAH [1997-98] 1 GLR 1006

CASES REFERRED TO

(1) Johnson, Re (1887) 20 QBD 68, CA.

(2) R v Castro (Onslow and Whalley’s Case) (1873) LR 9 QB 219.

(3) Mcleod v St Aubyn [1899] AC 549.

(4) R v Gray [1900] 2 QB 36.

NATURE OF PROCEEDINGS

APPLICATION by the plaintiff-applicant to the High Court, Ho to attach the defendant-respondent for contempt of court on the [p.1007] of [1997-98] 1 GLR 1006 ground that he had threatened the life of a witness who had testified for the applicant and all potential witnesses for the applicant with death. The facts are sufficiently stated in the ruling.

COUNSEL

Jones Dotse for the plaintiff-applicant.

Honyenugah for the defendant-respondent.

JUDGMENT OF ASARE KORANG J.

This is a motion on notice for leave to attach the body of the respondent herein for contempt of court.

The facts preceding this application are that on 28 January 1991 the applicant herein issued against the respondent a writ of summons claiming, inter alia, a declaration of title to a piece or parcel of land with buildings thereon situate and lying at Dzodze-Apeyeme; recovery of possession and ejectment of the defendant, his agents, servants and assigns from the buildings on the said land; damages for trespass; and perpetual injunction. Hearing of the substantive suit has started and the applicant has given evidence and called two witnesses namely, Awuley Stephen Dzaka, the first plaintiff witness, and Kodzotse Lede Agbeko, the second plaintiff witness. According to the applicant she is yet to close her case as she intends to call some other witnesses.

The basis of this application is an allegation by the applicant that after the evidence of Stephen Dzaka, the first plaintiff witness, her witness, the respondent summoned the said Stephen Dzaka and his father before one Togbe Akpabi of Dzodze for an arbitration. Before Togbe Akpabi, the respondent stated his complaint against Stephen Dzaka by asking him whether he Dzaka knew that in a land matter anybody who testifies as a witness dies. The respondent threatened that he was not pleased with the testimony of Dzaka in court and would make life very difficult for him. The respondent is said to have further threatened that the life of Dzaka was like an egg in his hand and he could do whatever he liked with it, break it at his own convenience.

Dzaka allegedly is now so scared for his life after these threats issued against him by the respondent before Togbe Akpabi at Dzodze and it is alleged that the said incident has naturally frightened other potential witnesses who the applicant intends to call. The applicant says as Dzodze is a close knit society, she is finding it a bit difficult to convince other witnesses that their lives would

[p.1008] of [1997-98] 1 GLR 1006 be safe in view of the track record of the respondent as a traditionalist.

It was argued before me by counsel for the applicant that the conduct of the respondent not only amounts to bringing the administration of justice into disrepute but is also an attempt to intimidate the witness and other potential witnesses. It was also submitted that the respondent’s conduct could only have been designed to undermine the authority and dignity of this court thereby subverting the due process of law.

The respondent swore to an affidavit wherein while opposing this application, he made some significant admissions. He admitted that after Stephen Dzaka had given evidence he summoned him and his father before Togbe Akpabi but that he did so out of ignorance. The respondent says what he told Togbe Akpabi was that Dzaka is a small boy who knows nothing about the building in dispute and yet came and told lies to the court. The respondent admits saying that anybody who tells lies in a land matter could die. But he denies threatening to make life difficult for Dzaka because he (the respondent) is not God. He stressed that he is not a juju man who kills and that even after he had called Dzaka before the said arbitration, Kodzotse Ledi and one other witness have testified in the substantive suit.

Touching on what transpired in court on 26 November 1996, the respondent says on that date in open court, counsel for the applicant said he (the respondent) was interfering with the administration of justice by inviting Dzaka and questioning him why he should testify against him. The respondent contends that his counsel apologised on his behalf and said he (counsel) had not been consulted by the respondent before he behaved that way and that the respondent had misconducted himself out of ignorance. Consequently, this court warned and reprimanded the respondent not to repeat what he did again, otherwise he would be severely dealt with by the court. Having been so chastised by the court, the respondent says he cannot be tried twice for the same offence and this application is calculated to waste the court’s time as it has been brought in bad faith to throw up the respondent as a murderer and a wicked person.

On the affidavits filed by the parties herein, I find that it is all too true that the respondent called Stephen Dzaka before an arbi

[p.1009] of [1997-98] 1 GLR 1006 trator and threatened him that a person who tells lies in a land case could die. To my mind, this is a threat and is such as could engender in the hearts and minds of potential witnesses the fear of testifying in the suit between the applicant and the respondent such as is alleged by the applicant in her affidavit.

It is also necessary to state correctly what happened in court on 20 November 1996 as what the respondent said, in his affidavit is not wholly true. While it is correct that counsel for the applicant brought to the notice of the court the fact that the respondent had issued a threat against a witness for the applicant, the name of the witness was not mentioned and counsel explicitly stated that the threat on the life of the witness had caused potential witnesses to panic such that they were refusing to testify in this case. The respondent neither denied nor admitted the allegation in court that day. Counsel for the respondent who said the allegation had taken him by surprise then said if the allegation were true, he was apologising on behalf of the respondent. The court then warned the respondent to desist from intimidating potential witnesses if what counsel for the applicant had said at the bar was true. What the court said was merely a piece of advice offered the respondent. There was no trial of the respondent on that date to warrant the allegation that he is now being tried twice for the same offence because the allegation on 26 November 1996 was unproven. No evidence was led that day and nobody was cross-examined as to what had occurred at Dzodze.

It ought also to be stated that counsel for the applicant felt so strongly about the matter that he gave fair notice of his intention to pursue it formally. This was because the court expressed the opinion that no formal application had been brought against the conduct of the respondent. It is that application which I have had to deal with today.

In the previous complaint made by counsel for the applicant no affidavits were filed. This case is clearly a contempt out of court since it is stated in Halsbury’s Laws of England (4th ed), Vol 9, para 29 at p 23 that:

“any interference with a witness to a pending or imminent suit, the purpose of which is to deter the witness from giving evidence or influence the nature of the evidence given, is a

[p.1010] of [1997-98] 1 GLR 1006 serious interference with the administration of justice and a contempt of court.

The interference may take one of a number of forms. Thus it is a contempt . . . to assault, threaten or intimidate a witness or a person likely to be called as a witness . . . It is also a contempt to assault, threaten or intimidate a witness after he has given evidence or even after a case is concluded if the predominant motive is to punish the witness for the evidence he has given.”

(The emphasis is mine.)

The principle applied in the case of interference with evidence is that those who have duties to perform in a court of justice are protected by the law and shielded on the way to the discharge of such duties, while discharging them, and on their return therefrom, that such persons may safely have recourse to the courts of justice: see Re Johnson (1887) 20 QBD 68 at 74, CA per Bowen LJ. In the case of a contempt out of court, the individual is called upon to show cause why he should not be committed and is allowed to file affidavits in the matter: see R v Castro (Onslow and Whalley’s Case) (1873) LR 9 QB 219; Mcleod v St Aubyn [1899] AC 549 and R v Gray [1900] 2 QB 36. Thus the order that the applicant should file a formal application was properly made in this case.

I think it is a serious matter that Stephen Dzaka having testified on behalf of the applicant in her suit against the respondent, was summoned before no less a person than an arbitrator. What purpose the arbitration was intended to serve is not disclosed but the motive of the respondent can only be deemed to be sinister having regard to the threat he issued that he was not pleased with Stephen Dzaka testifying against him and that he was serving notice on Dzaka that anybody who testifies in a land case as a witness dies. This threat, in my view, was sufficient to make the witness Stephen Dzaka and other potential witnesses feel unprotected and to give them the impression that they would not safely have recourse to the courts of justice. The conduct of the respondent, no doubt, was designed to bring the administration of justice into disrepute and to undermine the authority and dignity of this court.

[p.1011] of [1997-98] 1 GLR 1006

Accordingly I find the respondent guilty of contempt. The respondent is sentenced to a fine of ¢300,000 or in default three months’ imprisonment. I award costs of ¢100,000 in favour of the applicant.

DECISION

Application granted.

SA